On Burger King’s New Mac N’ Cheetos

Any regular follower knows that we here at Abnormal Use love an entertaining headline about the trials and tribulations of the food service industry. From hot coffee burns to heart attacks involving “triple bypass” burgers, the world of food and drink has given us much to write about over the years. Why are these stories so engaging? Maybe it is because we can all relate to the everyday people involved. We have each spent our fair share of time eating at a franchised chain restaurant or sitting in a drive-thru line. Or perhaps it’s because our articles are drafted during a lunch break, subconsciously leading our trusty writers to focus on topics that give them an appetite. But we are entering dark times in the food service industry.  After opening our Internet browser this morning and reading today’s headlines, we fear the end is near. They have simply gone too far. I cannot – and will not – get on board with this. Behold, faithful readers, Burger King’s new Mac N’ Cheetos:

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That’s right, folks. Soak it up in all its greasy, cheesy, consumeristic glory. Deep-fried sticks of macaroni and cheese encrusted with Cheetos-flavored breading. This writer is a big supporter of restaurant chains and snacking brands partnering together to promote their products under the right circumstances. Taco Bell’s Doritos Locos Taco? Amazing (especially in Cool Ranch flavor). By the way, does anyone really know what those blue flakes on the Cool Ranch Doritos are made of? They need to start selling those bad-boys by the jar in the grocery store. I’d sprinkle them on every dish in place of salt and pepper. But I digress. Back to the offensive issue at hand. Burger King seems to be trying to run with the success and overall deliciousness of Taco Bell’s Doritos Locos Taco by rolling out this sad excuse of a snack. Cheetos are incredible. Mac and cheese is a classic American dish. However, there is no circumstance under which they should be served as one item. Hey, I’m just one guy. And I am certainly no foodie. But if you ask me, this is troubling.

Off-Duty Deputy Punched After Getting Between Food and “Hangry” Customer, Deputy Lucky To Be Alive

On behalf of myself, my wife, and my young children, I would like to take a moment to thank Oklahoma County resident Lindsay Williams for her courage and willingness to take drastic measures to bring national awareness to an all-too common medical condition that is tearing our communities apart. Ms. Williams, we owe you a debt of gratitude for doing what was necessary to bring this unfortunate disease into the national spotlight.

On April 1st at around 12:30 p.m, Ms. Williams was dining at a local Oklahoma City establishment when, through no fault of her own, she was forced to assault a fellow customer. You see, Williams was hungry that day. Scratch that, she was hangry. If you aren’t a member of the medical community, you may be asking yourself – what is “hangry”? The American Journal of Absurd and Fabricated Medical Conditions describes hanger as “a sudden breakdown of mental and emotional stability resulting from extreme hunger.” According to a 2015 study by the National Hunger-Induced Rage Association, this tragic condition affects over five million U.S. citizens every year. Common side effects include uncontrolled screaming at children and pets; sudden outbursts of hysterical crying; and violence towards inanimate objects. In rare circumstances, patients suffering from extreme hanger can experience vivid dreams of entering into a Nathan’s Hot Dog Eating contest.

Needless to say, Ms. Williams was not someone to be trifled with on the afternoon of April 1st as the hanger flowed through her veins (and stomach). Her first visit to the restaurant’s salad bar went as anyone would expect. She made a beautiful, plush salad using her bare hands to select ingredients for her plate. Did she use the fancy salad tongs provided by the restaurant? Of course not. She was hangry. There’s no time for frilly utensils when your stomach is growling like grizzly bear and your blood is reaching a boiling point. Apparently the first salad didn’t tame the beast because shortly thereafter, Williams returned to the salad bar for round two. As she compiled the freshest ingredients onto her plate, a fellow customer had the audacity to confront Williams about the use of her bare hands to make the salad. BIG MISTAKE. Acting in what any hangry person would deem to be an appropriate fashion, Williams turned to the customer and promptly punched her in the nose.

Williams didn’t know the stranger was an off-duty deputy with the Oklahoma County Sheriff’s Department. But as a husband and father who often has to identify the early signs of hanger to diffuse potentially nuclear situations around the house, I have no doubt the deputy ignored the tell-tale symptoms of hanger displayed by Ms. Williams. Call it a sudden medical emergency, temporary insanity or assumption of risk… but I give Ms. Williams a pass on this one.

The Perils Of Marijuana Tourism In Colorado

Gloves? Check. Goggles? Check. Ski pants? Check. Heath insurance information and money for the co-pay? Check. That’s right. If you’re headed out west for an epic trip to shred the fresh snowfall in Colorado, you may want to bring a hospital bag just in case. We’re not talking about the risk of a cast for a broken bone suffered while attempting to channel your inner Shawn White at the resort’s terrain park. Or even getting stitches after taking a tumble walking out of a local pub following an hour or two of après-ski. No, we’re talking about treatment for a full-on psychotic episode. Because according to a recent article by the Associated Press, if you plan to take part in the growing (pun intended) marijuana tourism industry during your time in the Centennial State, you are statistically more likely to end up in a hospital ER than your local counterpart. In 2014, the year recreational marijuana sales were legalized in Colorado, the number of emergency room visits by tourists related to marijuana use nearly doubled from the prior year. The most common ailments reported by tourists and visitors in the study were psychiatric in nature, including aggressive behavior and hallucinations. Perhaps you are thinking those numbers reflect a rush of college coeds who rerouted their spring break plans from Panama City to Denver to participate in a week long botany class? Nope. The median age for visitors reporting to the ER with marijuana-related issues in the study was 35.5 years. So much for blaming millennials.

The marijuana tourism industry is growing at a rapid pace. All-inclusive cannabis vacation packages, cannabis-themed excursions, cannabis friendly resorts, dispensary and grow tours offer plenty of ways to get a mile high in and around the Mile High City if that’s the experience you seek. For those of you planning to partake, make sure you pace yourself and maintain good health insurance coverage.

Rain, Rain, Go Away: Avoiding Premises Liability Actions When Mother Nature Strikes

We’ve all been there. You circle the parking lot two or three times in search of that Utopian parking spot located just steps from the store’s entrance and covered in the shade of a majestic oak tree. But just about the time you start your final pass before accepting defeat, the dark clouds roll in and drop buckets of rain so harsh your mind conjures visions of animals marching  two-by-two. With no signs of life in the vehicles in the front row parking spaces, you are forced to park your chariot in what seems like the distant lands of a foreign nation. It’s only at that moment you first realize your one and only safety net from the monsoon is an umbrella which just so happens to be located safely between your nine iron and putter in a golf bag at home. Your only option is to call upon your inner Usain Bolt to dash through the downpour until you can reach shelter at the store’s entrance. Despite executing a 40-yard dash worthy of honorable mention at the NFL combine, you reach the entrance soaked from head to toe, your tee shirt stuck to your back and tennis shoes squeaking with every step.

Okay, I’ll admit it. That may be a bit of hyperbole. Chalk that up as a feeble attempt to use what my high school English teacher would call an “attention grabbing hook.” But undoubtedly we have all experienced situations while running routine errands or meeting friends for dinner where we are wholly unprepared for the elements Mother Nature throws at us. We end up in a rush to avoid that “fresh out of the swimming pool” look and are not entirely focused on our safety, or the well-being of those around us. The majority of the time, we are able to air dry over an appetizer, or hang our wet clothes on the hook in the dressing room while we try on a bunch of new outfits. No harm, no foul, as they say.

However, as the owner or risk manager of a retail store, hotel, or restaurant, it is your job to not only delight in each individual who patronizes your business without incident, but also to focus on the bigger picture to ensure a series of non-issues doesn’t lead to one unfortunate customer accident. It’s during these times that you, as a business owner, need to understand exactly what duties you and your employees owe to the rain-soaked customer.

In South Carolina, a merchant (such as the owner of a retail store, hotel, or restaurant) is not an insurer of the safety of his/her customers; however, the merchant does owe his/her customers certain duties such as exercising ordinary care to keep the premises in a reasonably safe condition. See Felder v. K-Mart Corporation, 297 S.C. 446, 377. S.E.2d 332 (1989). Further, the merchant is not required to maintain his/her premises in such a condition that no accident could happen to a patron at the facility. See Denton v. Winn-Dixie Greenville, Inc., 312 S.C. 119, 439 S.E.2d 292 (1993).

In determining negligence in slip-and-fall cases involving a foreign substance, the South Carolina Supreme Court has outlined two categories under which a Plaintiff may maintain an action against a merchant: (1) where the plaintiff demonstrates the foreign substance in which he/she slipped was actually placed on the floor by the merchant or its agents (i.e. employees); or (2) where the plaintiff demonstrates the merchant had actual or constructive notice the substance was on the floor at the time of the slip and fall, but failed to remedy or otherwise warn of the danger it posed. See Legette v. Piggly Wiggly, Inc., 368 S.C. 576 (Ct. App. 2006); see also Gilliland v. Pierce Motor Company, 235 S.C. 268, 111 S.E.2d 521 (1959); Wintersteen v. Food Lion, Inc., 344 S.C. 32 (2001); Hunter v. Dixie Home Stores, 232 S.C. 139, 101 S.E.2d 262 (1957); Anderson v. Belk-Robinson Company, 192 S.C. 132, 5 S.E.2d 732 (1939). The mere fact that an injured party can show a foreign substance was in fact on the floor which caused his/her fall is insufficient standing alone to maintain an action for negligence against a storekeeper. See Calvert v. House Beautiful Painting & Decorating Center, Inc., 313 S.C. 494, 443 S.E.2d 398 (1994); see also Browning v. Bi-Lo, Inc., 2004 WL 6334931 (West 2004).

Therefore, as noted above, a patron seeking to recover under a premises liability theory for a slip-and-fall injury must show either the substance was placed on the floor by the store, or that the store had actual or constructive notice the substance was there. Where there is no evidence a store employee placed the substance on the floor himself/herself (for example by mopping the floor), and no evidence the store had actual notice of the substance, the injured party will seek to prove the store had constructive notice the substance was there. “Constructive notice may be proved by showing that the [foreign substance] had been on the floor sufficiently long that the [store] was negligent in failing to discover and remove [that substance]” prior to the injured party’s fall. Hunter v. Dixie Homes Stores, supra. Hence the need for routine, periodic store inspections by employees during their shifts to identify and remedy potential hazards.

However, even with the most stringent store policies requiring routine, periodic store inspections by one’s employees, slip-and-fall incidents still occur. The Court has recognized a store’s inability to entirely ensure the absence of foreign substances on its floors by conducting continuous inspections, saying “[i]t is well settled that merchants are not required to continuously inspect their floor for foreign substances.” Olson v. Faculty House of Carolina, Inc., 354 S.C. 161, 166, 580 S.E.2d 440, 442, (2003). The standard, rather, is simply to “[exercise] ordinary care to keep the premises in a reasonably safe condition.” See Felder v. K-Mart, supra.

That leads us to the question: how have South Carolina courts viewed merchant liability for customer slip-and-falls resulting from tracked-in rainwater in the past? In Young v. Meeting Street Piggly Wiggly, the South Carolina Court of Appeals noted “it is impossible to keep commercial premises entirely free of tracked-in rain during bad weather” and, for that reason, “a merchant’s liability may not be based solely on the presence of moisture” within the store. Young v. Meeting Street Piggly Wiggly, 288 S.C. 508, 510, 343 S.E.2d 636, 637 – 638 (Ct. App. 1986). Rather, the injured party must prove a presence of moisture which caused their injury, as well as evidence the business failure to exercise reasonable care in identifying and remedying the hazard caused by the accrued moisture. The Young court concluded the merchant in that instance, Piggly Wiggly grocery store, had undertaken sufficient reasonable steps to protect its customers from tracked-in rainwater by placing rubber mats inside and outside of the store’s entrances, having employees mop the entrance/exit areas to remove excess water every five (5) to ten (10) minutes, and placing at least one warning sign in proximity to the area of accumulation to caution patrons of the potential hazard. The court also recognized holdings in outside jurisdictions where storekeepers had satisfied their duty of care by mopping entrances periodically to avoid accumulations of rainwater. In particular, the court referenced an Iowa Supreme Court case in which the Court held a store’s mopping of tracked-in rain water “every hour or two” near the entrances was objectively reasonable and sufficient to relieve the store of liability for a customer slip-and-fall. Young at 511, 343 S.E.2d at 638; quoting Weidenhaft v. Shoopers Fair of Des Moines, Inc., 165 N.W.2d 756, 761 (Iowa 1969).

Twenty years after the Young decision, the South Carolina Court of Appeals reiterated its approval of the inclement weather procedures established in that case through the opinion set forth in Legette v. Piggly Wiggly, Inc., supra. In Legette, the court found Piggly Wiggly employees had also satisfied their duty of exercising reasonable care to maintain the commercial premises in a reasonably safe condition from tracked-in rainwater by mopping the store’s entry periodically, placing caution signs in the area to warn customers of the potential hazard, and leaving rubber mats in place at the entrance(s) and exit(s) until such time as those mats became so saturated that they posed a greater danger to customers than exposing the store’s bare floor. See Leggette, supra at 580, 629 S.E.2d at 377. These precautionary policies remain in place today in South Carolina as sufficient to satisfy a merchant’s duties to the patron under the applicable standard.

It should also be noted that South Carolina has recognized a customer’s responsibility to ensure their own safety when hazardous weather conditions present themselves in a commercial setting. Specifically, in the Young opinion, the Court cited opinions from the Louisiana and North Carolina Courts of Appeals, as well as the Ohio Supreme Court, stating “an ordinary reasonable person would know that there would inevitably be moisture on the floor as a result of rain-soaked people coming into the store.” Young at 510, 343 S.E.2d at 638. In quoting the Ohio Supreme Court’s opinion in S.S. Kresge Co. v. Fader, the court said “[everybody] knows that, when people are entering any building when it is raining, they will carry some moisture on their feet, which will render the floor near the door on the inside damp to some extent, and everyone knows that a damp floor is likely to be a little more slippery than a dry floor.” For that reason, “[i]t is not the duty of persons in control of such buildings to keep a large force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas, for several very good reasons, all so obviously that it is wholly unnecessary to mention them here in detail.” It is also the duty of the patron to exercise reasonable care for their own safety and well-being when entering a store from inclement weather outside. While the precise actions which are expected from the customer are not specifically spelled out, one would expect them to include walking at a slower pace, keeping a proper lookout for accumulated moisture on the floor, and wearing proper footwear to avoid an increased chance of slipping, amongst other things. Evidence of a customer’s failure to conduct themselves in a reasonable manner in light of the hazards posed by the rain may present an argument for contributory or comparative negligence in subsequent litigation.

With these precedents in mind and the apparent imposition of some increased level of care when inclement weather strikes, storekeepers, hoteliers, and restaurateurs would be wise to take a moment to ensure appropriate policies and procedures are in place at their businesses to ensure both the safety of customers on the premises, and also to avoid unnecessarily exposing ones’ self to potential liability for injuries sustained thereon. Whether instituting protocols for the placement of rubber mats and caution signs near entrances/exits when inclement weather is anticipated, requiring routine inspections and mopping at those locations once precipitation has begun, or some other combination of reasonable safety precautions, business owners and risk managers alike should take the time to ensure appropriate written policies and procedures are in place for their company, are provided to the employees, and are documented and carried out uniformly across a company’s multiple business locations.